AMENDMENT NO. 1 to AMENDED AND RESTATED LEASE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1
to
AMENDED
AND RESTATED LEASE AGREEMENT
This
AMENDMENT
NO. 1,
dated
as of June 1, 2006, to Amended and Restated Lease Agreement, dated as of
December 15, 1986, as amended and restated as of December 15, 1992, between
TUCSON
ELECTRIC POWER COMPANY,
an
Arizona corporation (“TEP”), as Lessee (such term and all other capitalized
terms used herein without definition having the meanings provided in Section
1
hereof), and WILMINGTON
TRUST COMPANY,
a
Delaware corporation, and XXXXXXX
X. XXXX
(not in
their respective individual capacities but solely as Owner Trustee and
Cotrustee, respectively, under the Trust Agreement between such parties and
TEP,
as assignee of USWFS Intermediary Trust, as Owner Participant), as Lessor (this
“Lease Amendment”),
W
I T N E S S E T H
WHEREAS,
the
Lessee and the Lessor have heretofore entered into an Amended and Restated
Lease
Agreement, dated as of December 15, 1986, as amended and restated as of December
15, 1992, as duly recorded in the office of the County Recorder of Apache
County, Arizona on December 14, 1992, in Book 701, Page 593, providing for
the
lease by the Lessor to the Lessee of the Undivided Interest (such Amended and
Restated Lease Agreement, as supplemented and amended hereby and as further
amended, modified or supplemented from time to time in accordance with the
provisions thereof, being hereinafter referred to as the “Lease”),
WHEREAS,
on June
23, 2006, the Lessee acquired the right, title and interest of USWFS
Intermediary Trust in the Trust Estate and pursuant to Section 7.01 of the
Participation Agreement became the Owner Participant,
WHEREAS,
the
Lessee and Lessor have agreed to amend the Lease as contemplated
herein,
WHEREAS,
Section
30(b) of the Lease provides, among other things, that until the Lessee has
received notice from the Indenture Trustee that the Lien of the Indenture on
the
Trust Indenture Estate has been released, no term of the Lease shall be amended
without the consent of the Indenture Trustee, and
WHEREAS,
pursuant to Section 8.02 of the Indenture, the Indenture Trustee has, as
instructed by the Lessee and the Owner Trustee, consented to the amendments
to
the Lease set forth in this Lease Amendment, such amendments being to Amendable
Sections,
NOW
THEREFORE,
in
consideration of the premises and of such other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section
1. Definitions. General Definitions.
Except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms used herein shall have the meanings set forth in
Section 1 of the Lease.
Section
2. Rent.
(a) Section
3(a)(i) of the Lease is hereby amended by deleting the first sentence thereof
in
its entirety and substituting therefore the following sentence:
On
each
Rent Payment Date occurring during the Primary Term, the Lessee shall pay to
the
Lessor an installment of Basic Rent for the Lessor’s Undivided Interest in an
amount equal to the scheduled amount payable on such date on the Secured
Notes.
(b) Schedule
1 to the Lease is hereby deleted.
Section
3. Counterpart
Execution.
This
Lease Amendment may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts shall together constitute but one and the same instrument.
The single executed original of this Lease Amendment which provides that it
is
the “original counterpart” and which contains the receipt therefor executed by
the Indenture Trustee on or immediately following the signature page thereof
shall evidence the monetary obligations of the Lessee hereunder and thereunder.
To the extent, if any, that this Lease Amendment constitutes chattel paper
(as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Lease Amendment may
be
created by the transfer or possession of any counterpart thereof other than
the
original counterpart and containing the receipt therefor executed by the
Indenture Trustee on or immediately following the signature page
thereof.
Section
4. Ratification
of the Lease.
This Lease Amendment is an amendment to the Lease. As amended by this Lease
Amendment, the Lease is in all respects ratified, approved and confirmed, and
the Lease and this Lease Amendment shall together constitute one and the same
instrument.
Section
5. Governing
Law.
This Lease Amendment has been delivered in, and shall in all respects be
governed by and construed in accordance with, the laws of the State of Arizona
applicable to agreements made and to be performed entirely within such state,
including matters of construction, validity and performance.
Section
6. Liabilities
of Owner Participant.
Sections 23 and 30 of the Lease are hereby incorporated by reference
mutatis
mutandis
in this
Lease Amendment.
2
IN
WITNESS WHEREOF,
the
undersigned Lessee and Lessor have each caused this Lease Amendment to be duly
executed and delivered and their corporate seals to be hereunto affixed and
attested or witnessed by their respective officers thereunto duly authorized
as
of the day and year first above written.
TUCSON
ELECTRIC POWER COMPANY,
as
Lessee
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By:
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Name:
Xxxxx X. Xxxxxx
Title:
Senior Vice President and
Chief Financial Officer
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[seal]
Attest:
__________________________________
Assistant
Secretary
3
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Owner Trustee under the
Trust
Agreement, as Lessor
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By:
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Name:
Title:
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[seal]
Attest:
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Title:
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XXXXXXX
X. XXXX,
not
in his individual capacity but solely as Cotrustee under the Trust
Agreement, as Lessor
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Witness:
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4
Receipt
of this original counterpart of the foregoing Amendment No. 1 to Lease Agreement
is hereby acknowledged on this 26th day of June, 2006.
LASALLE
BANK NATIONAL ASSOCIATION
as
Indenture Trustee
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By:
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Name:
Title:
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5
ACKNOWLEDGEMENTS
TO LEASE AMENDMENT
STATE
OF
ARIZONA )
)
ss.:
COUNTY
OF
PIMA
)
The
foregoing instrument was acknowledged before me this 26th day of June, 2006,
by
_________________, _________________ of TUCSON
ELECTRIC POWER COMPANY,
an
Arizona corporation, on behalf of said corporation.
_______________________
Notary
Public
My
Commission Expires:
_____________________
6
STATE
OF
DELAWARE )
) ss.:
COUNTY
OF
NEW CASTLE )
The
foregoing instrument was acknowledged before me this 26th
day of
June, 2006, by __________________, __________________ of WILMINGTON
TRUST COMPANY,
a
Delaware banking corporation, on behalf of said corporation.
_______________________
Notary
Public
My
Commission Expires:
_____________________
7
STATE
OF
DELAWARE )
) ss.:
COUNTY
OF
NEW CASTLE )
The
foregoing instrument was acknowledged before me this 26th
day of
June, 2006, by XXXXXXX
X. XXXX,
an
individual.
_______________________
Notary
Public
My
Commission Expires:
_____________________
8